Friday, February 6, 2009

Update Regarding Implementation of Lacey Act Amendments

(Canadian Embassy via IE Canada)

A notice was published in the Federal Register earlier this week with the revised implementation plan for the Lacey Act amendments. A copy of the notice is available here.

Below is a further update provided by the Canadian Embassy regarding a recent meeting with the United States Trade Representative (USTR) with respect to the revised Lacey Act implementation plan. We were asked not to distribute this update until the revised implementation plan was published.

The information provided in this update should be verified against the Federal Register notice.

Canadian Embassy Update

On Thursday, January 15, Kevin Thompson, Counsellor (Trade Policy), Canadian Embassy and a representative from the European Commission Mission in Washington (EC) met with USTR to discuss the respective comments filed by Canada and the EC to the APHIS Lacey Act Implementation Plan Federal Register Notice of October 8. We wanted to use the opportunity to underscore key points in our respective submissions and to seek additional information on the next steps in the Administration’s implementation plan for the import declaration. The following are the key points coming out the meeting:

1. APHIS anticipates issuing a revised implementation plan and schedule early next week. There will be substantial changes to the schedule as it appeared in the October 8 Notice. The USG has revised its approach to identify a positive list of products for which the declaration will be required (as opposed to an all encompassing requirement, subject to exceptions).

From what we were able to gleam, the implementation plan will be broken into three six month phases:

Phase I – April to September 30, 2009, covering
• 4401, 4403, 4404, 4407, 4408, 4409, 4417, 4418

Phase II – October 1 to March 31, 2010, covering
• 4402, 4405, 4410 to 4416, 4419, 4420 and 4701 to 4705

Phase III – April 1 to September 30, 2010
• 4421, 4801 to 4811 and 940169, 9403.03 to 9403.07

You will note the following:

• The 3 phases only apply to wood and wood products. Chapter 44 is divided into Phase I and II.

• Chapter 6 has been dropped off the implementation schedule (will not apply to horticultural plants or Christmas Trees)

• the implementation plan takes the USG to the end of the 2 year period before which a review can taken place under the legislation. Thus, product categories not on this list will likely not be subject to import declaration before the completion of the review. USG intends to conduct studies of whether to include other products beyond what is identified in this revised schedule.

• Chap 4706 and 4707 will not be included because this encompasses recovered (waste and scrap) material. Intention is not to collect information if the answer is already known.

• Import Declaration will only be required for the good that is being imported and that is identified on the implementation schedule (for instance, it will not be required for any manuals or labels that accompany the good being imported).

2. Phase I of the schedule is fixed. However, USG will be eliciting comments on Phases II and III. The USG encourages comments on an ongoing basis describing the process as very fluid.

3. In terms of the electronic entry system, CBP is currently working on modifications to the Automated Commercial System (ACS). Thus, in order to avoid duplication of information, the intention is not to have a completely separate system, but to integrate additional information requirements into existing ACS environment.

4. Ideally, USG would like to have electronic system operational for several weeks (possibly a month) before the declaration requirement becomes enforceable, to enable trade to practice. That’s the plan, although it may not be realistic.

5. Paper Declarations – no declarations have been filed to date. Apparently, APHIS has set up a mailbox for imports to send voluntary declarations.

6. Time of submission – the rules for when the import declaration will have to be submitted will likely be the same as existing rules for other types of customs documentation (time of entry, time of release)

7. Import declaration information will likely be governed by same confidentiality requirements as other types of customs documentation. However, it is anticipated that some form of aggregate information will be publicly released (ENGOs are pushing for this)

8. Database of internationally recognized scientific names. Currently, CBP is contemplating a drop-down menu for specifying scientific names.

9. Use of commercial short-form nomenclature (e.g. SPF). Unlikely at this stage. Statute requires genus and species.

10. Blanket or Simplified Declaration – Discussions are underway regarding the use of a simplified declaration such as that suggested by Canada. However, it appears unlikely that they will be able to implement by April 1. USTR would welcome any additional suggestions we would have to operationalize the simplified declaration.

11. Wood Packaging – Chapter 4415. USTR encourages us to raise this issue again in order to highlight difficulties.